Berbling v. Glaser — 23 N.Y.S. 118

Majority

p. 118

BERBLING v. GLASER.

(City Court of New York,

General Term.

April 14, 1893.)

Headnote

Subetyship—Sale of Business—Assumption of Debts.

One who purchases a business, agreeing to assume as part of the consideration the debts of the sellers, becomes not a surety or guarantor as to-such debts, but principal.

Appeal from trial term.

Action by John E. Berbling against Frederick G-laser. Judgment, for plaintiff. Defendant appeals.

Affirmed.

' Argued before McGOWN and FITZSIMONS, J J.

Eeosch & Fennel, for appellant.

Philips & Avery, for respondent

On June 12, 1891,. the defendant purchased from Messrs. Idler & Sutton a restaurant in Stone street, this city.. In addition to the purchase price, $4,000, mentioned in the bill of sale, it appears that defendant, as a further consideration, agreed to assume and pay the debts of Idler & Sutton, contracted as proprietors of said restaurant. One of the debtors was the plaintiff, to-whom was owing $363.85. If there is sufficient evidence in. the case, establishing affirmatively the consideration or purchase price for said restaurant, as contended for by plaintiff, then there is no doubt that defendant, by making such agreement with Idler & Sutton, became, not a surety or guarantor for the payment of their debts above mentioned, but a principal, and liable to such creditors previously, and as an original debtor, and his liability to pay such debts is established. The question “whether or not such was the consideration price for said restaurant, and the agreement made between the defendant and Idler & Sutton,” was submitted to the jury, and they found in the affirmative. A careful perusal of the whole-evidence in the case convinces us that their finding was authorized and justified.

Finding no error, the judgment is affirmed, with costs.